Uxbridge residents appeal permit for asphalt plant

Thursday

Feb 21, 2013 at 8:00 PMFeb 21, 2013 at 8:15 PM

By Susan Spencer TELEGRAM & GAZETTE STAFF

There’s more rough road ahead for development of an asphalt plant in South Uxbridge.

Arguing that the Planning Board’s Jan. 23 award of a special permit for the plant, proposed for Quaker Highway by Evergreen Development, was “arbitrary, capricious and exceeded the Planning Board’s authority,” the South Uxbridge Community Association and residents Joseph Frisk and Kevin M. Gallo are suing the town in Land Court.

The town, Town Manager Sean Hendricks and members of the Planning Board are named as defendants.

The complaint, filed Feb. 12, seeks to nullify the special permit and asks the court for a declaratory judgment on the validity of zoning bylaws under which the permit was awarded.

At issue is whether the Planning Board’s action violated an amendment to town zoning bylaws approved in 1995, which prohibit bituminous asphalt mixing or manufacturing plants as well as structures and equipment related to asphalt production. Asphalt production was prohibited because of concerns over its impact on health, the environment and quality of life.

The adopted amendments, while approved and certified by the state attorney general’s office, were never incorporated “by inadvertence or neglect” into any written edition of the zoning bylaws.

In 2008, voters at town meeting approved a “recodification” of the zoning bylaws intended, according to the final draft commentary, to “reconcile our zoning requirements with changes that have been made to Massachusetts General Laws and their interpretation.”

According to the complaint, the 1995 bylaw amendment prohibiting asphalt manufacturing was never properly repealed. The 2008 final draft zoning bylaw recodification allegedly did not contain sufficient notice of the subject matter required to identify the content being repealed, which the South Uxbridge Community Association argued was necessary under state law.

Town Counsel Patrick Costello wrote to Mr. Hendricks on Jan. 8: “In my opinion, based upon the clear and specific language set forth in Article 24 of the May of 2008 annual town meeting warrant and in the motion approved thereunder, … (the 1995 amendment prohibiting asphalt plants) was repealed due to its omission from the text of the March 2008 zoning bylaw recodification.”

“I’m glad that the focus is on the legal issue and not the personalities (of the Planning Board and town officials),” Mr. Hendricks said. “This is a question that needs to be answered by a third party.”

He said he hoped final resolution of the bylaw’s validity would satisfy all parties involved.

Mr. Gallo, who along with Mr. Frisk agreed to be named as plaintiff, said he was pursuing the action in court “because I don’t believe the 1995 bylaws were properly repealed.”

He added: “I think a lot of people are very unhappy with how this all happened. There’s a lot of discontent with how town officials handled it.”

Mr. Gallo said South Uxbridge Community Association members had requested that selectmen discuss the Planning Board’s action, but Selectman Jay Cahill, his board’s chairman, replied to Mr. Frisk in an email that the board would not place the item on the Feb. 11 meeting agenda.

Mr. Cahill wrote that selectmen would not have legal authority to rule on the issue. Also, the board would not pursue an appeal of the Planning Board’s action because it would go against advice from town counsel.

However, he said the South Uxbridge Community Association could file an appeal on its own.

“This was our only avenue to move forward with this,” Mr. Gallo said. “We’re waiting for the town to respond.”

Mr. Gallo said that legal fees for the appeal were being paid for through donations to the South Uxbridge Community Association.